TaxTMI 
TaxTMI 
2017 (12) TMI 766
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....ring the course of investigation are as follows: (i) Certain small scribbling note pads said to contain the details of goods removed without payment of duty by the assessee. In the statement dated 29.7.2003 recorded from Shri R. Jawahar, Commercial Manager of the assessee, he deposed that these scribbling pads contain the details of the ingots removed without payment of duty. The said statement was retracted by Shri R. Jawahar, however, the department again summoned him and further statement was recorded on 18.9.2003 in which he deposed that such scribbling pads contain record of goods cleared clandestinely. (ii) On the basis of seized records in the form of scribbling pads, it was inferred that a total of 553.495 MT of goods were clandestinely cleared without payment of duty. (iii) A vehicle bearing registration No.KL 9D 756 driven by one Shri Suresh Babu reached the factory during search on 29.7.2003. The driver was found in possession of a copy of invoice No.181 dated 29.7.2003 of the assessee for 12.420 MT of MS ingots issued to M/s. Gasha Steels (P) Ltd. A duplicate copy of the weighment slip matching with the above seized of invoice was also found. In his statement, Shr....
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....department estimated that the assessee could have manufactured 780 MT ingots per month by taking 10-14 heats per day and by taking the average final product output of 3 MT per heat and 26 working days in a month. By adopting this calculation for the period 1.5.2000 to 29.7.2003 (39 months), the total clandestine clearance was projected at 30,420 MT and after deducting the quantity already accounted by the assesse, it was alleged in the show-cause notice that total quantity of 3440.500 MT was clandestinely cleared. On these quantum of finished products, the show-cause notice was issued for demand of Central Excise duty amounting to Rs. 56,79,181/-. 2.2 After the due process of adjudication, the learned Commissioner passed the impugned order in which demand was confirmed only to the extent of Rs. 7,52,843/- and penalties were also imposed on the assessee as well as the Managing Director. The rest of the demand made in the show-cause notice was dropped by the Commissioner. 2.3 Appeal has been filed by the assessee challenging the confirmation of the duty demand amounting to Rs. 7,52,843/- as well as the penalties imposed on the assessee as well as Shri M. Paramasivam, Managing Direc....
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.... submission that the assessee is capable of manufacturing as much as 14 heats per day, each heat of capacity of 3 MT, however, the department has computed the demand in the show-cause notice only on the basis of taking 10 heats per day, which is a very reasonable quantity estimated per day. He opposed the contention of the assessee that without granting cross-examination of the witnesses, the statements cannot be made use of in any quasi-judicial proceedings. He sought to distinguish the case law in the case of G-Tech Industries (supra) by submitting that the said decision was given by the Hon'ble High Court in writ petition which does not become a binding precedent and will be applicable only to that particular case. He further submitted that the provisions of Section 9D are directly applicable only in the case of criminal proceedings pending before the court. 5.1 The learned DR also placed reliance on the following case laws. * Collector of Customs, Madras and Ors. Vs. D. Bhoormull: 1983 (13) E.L.T. 1546 (S.C.) * R.S. Company vs. CCE: 2017 (351) ELT 264 (MP) * Columbia Electronics Ltd. vs. CCE: 2002 (143) ELT 635 (Tri.-Del.) 6. Heard both sides and peruse the records. 7.....
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....rt. By following the above decision, we are of the view that there is no infirmity in the impugned order in which the duty demand, projected only on the basis of number of heats per day, has been set aside. In the result, the appeal filed by the Revenue is rejected. 8. Next, we turn to the grounds of appeal taken up by the assessee. The main evidence on the basis of which the adjudicating authority has upheld the duty demand of Rs. 7,52,843/- is the private documents in the form of scribbling pads recovered from the factory premises of the assessee. Such scribbling pads are said to contain the details of the goods removed without payment of duty by the assessee. On the basis of these scribbling pads, it is alleged that a total of 553 MT of ingots have been clandestinely cleared. The authenticity of the information contained in these scribbling pads has been confirmed by Shri R. Jawahar, Commercial Manager in his statement recorded during the search conducted in the assessees premises. Though such statement was retracted, a further statement was recorded from him on a later date in which he has confirmed that the scribbling pads indeed contained record of goods cleared clandestinel....